Willie D. Gilbert, II v. North Carolina State Bar

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DNISIONN S":(),-c.",-:J'3-Po. __ ~ _ FILED

WILLIE D. GILBERT, II ))

Plaintiff, ))

v. ))

THE NORTH CAROLINA STATE BAR; and )A. ROOT EDMONSON, individually and in his )official capacity as an agent of the North Carolina )SWeB~ )

)Defendants. )

--------------------------------)

AUG J 12009~,.. ..•.-.....,. ... ' ..111 OfSTJitl{ •. ,,'\.., . .8Y G. ~--COMPLAINT --'1?'.~_ v-, ---.

Plaintiff, complaining of the Defendants, hereby alleges and says as follows:

OVERVIEW OF THE ACTION

1. This is a civil rights action by which the Plaintiff, an attorney duly licensed to

practice law in the State of North Carolina, seeks, inter alia. to temporarily restrain, and to

preliminarily and permanently enjoin an attorney disciplinary proceeding that the North Carolina

State Bar has filed against the Plaintiff and is prosecuting in bad faith and for vindictive reasons.

2. As set forth in greater detail below, this Complaint alleges that, for at least the last

nine (9) years, the North Carolina State Bar has engaged in an ongoing, systematic, and wide-

ranging series of legal and administrative tactics that unnecessarily, unjustifiably, and by

inappropriate and unlawful means seek to: (a) prevent the Plaintiff from exercising his

constitutional right to practice law; (b) harass, menace, and intimidate the Plaintiff; and (c)

retaliate against the Plaintiff for having exercised his clearly established and lawful right to

defend himself zealously against repeated claims and charges of professional misconduct

Case 5:09-cv-00383-D Document 7-13 Filed 08/27/09 of 45

brought, not by his own clients, but by the North Carolina State Bar.

3. While the more generalized aspects of this Complaint reveal a need for

meaningful checks and balances on the way the North Carolina State Bar exercises its

disciplinary power and authority, the more specific allegations expose the abusive and unlawful

manner in which the North Carolina State Bar has exercised that power and authority with

respect to the Plaintiff, highlight the Plaintiffs so far futile efforts to put an enduring stop to this

abuse of power and authority, and underscore the inescapable conclusion that federal court

intervention is now necessary to put a permanent stop to the abusive and unlawful conduct in

which the North Carolina State Bar has been engaging.

4. As set forth below, the wrongful acts at issue in this case have caused the Plaintiff

to sustain a multitude of damages, and the Plaintiff is entitled to recover a judgment against the

defendants consisting of monetary, declaratory, and injunctive relief.

5. It is against this backdrop that the following more specific factual allegations are

made.

THE PARTIES

6. Plaintiff Willie D. Gilbert, IT ("Plaintiff') is a citizen and resident of Wilson,

Wilson County, North Carolina.

7. Defendant The North Carolina State Bar (hereinafter sometimes referred to as

"the State Bar") is an agency of the State of North Carolina created under and by virtue of Article

4 of Chapter 84 of the North Carolina General Statutes.

8. Upon information and belief, Defendant A. Root Edmonson ("Edmonson") is a

citizen and resident of Raleigh, Wake County, North Carolina. Edmonson is employed as a

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prosecutor in the North Carolina State Bar's Office of Counsel, and is being sued here both in his

individual capacity and in his official capacity as an agent of The North Carolina State Bar.

JURISDICTION AND VENUE

9. This is a civil rights action under 42 U.S.C. § 1983 for the violation of Plaintiffs

rights under the First and Fourteenth Amendments of the United States Constitution, for the

violation of Plaintiffs rights under the federal common law. and for the violation of Plaintiffs

rights under various related North Carolina state laws.

10. This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343.

11. This Court has supplemental jurisdiction over the related state law claims that

have been asserted herein pursuant to 28 U.S.C. § 1367.

12. Venue of this action in the United States District Court for the Eastern District of

North Carolina is proper pursuant to 28 U.S.C. § 1391(b), in that, as herein alleged: (a) each of

the defendants named herein resides in this judicial district; and (b) a substantial part of the

transactions, occurrences and events giving rise to Plaintiffs claims occurred within this judicial

district.

FACTUAL BACKGROUND

13. Plaintiff is a 1987 magna cum Laude graduate of North Carolina A&T State

University, and a 1990 cum Laude graduate of North Carolina Central University School of Law.

14. In July of 1990, Plaintiff took and passed the North Carolina Bar Examination,

and, in August of 1990, obtained a license to practice law in the State of North Carolina from the

North Carolina Board of Law Examiners.

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15. For two years immediately following his licensure, the Plaintiff served the people

of the State of North Carolina as a judicial law clerk, first for the North Carolina Court of

Appeals (from 1990-91) and later for the United States District Court for the Eastern District of

North Carolina (from 1991-92).

16. Plaintiff then entered the private practice of law, where, for the next three and

one-half years, he practiced as a litigation associate at one of North Carolina's oldest and largest

law firms.

17. In January of 1996, Plaintiff established his own law firm and embarked upon the

sole practice of law. In July of 1999, the outrage that has become the historical background of

this case first began to take shape.

18. As previously stated, the North Carolina State Bar is an agency of the State of

North Carolina created under and by virtue of Article 4 of Chapter 84 of the North Carolina

General Statutes. Though the Plaintiff questions the constitutionality of numerous aspects of

Article 4 of Chapter 84 under the North Carolina Constitution, the North Carolina State Bar,

under the putative authority of Chapter 84, has traditionally governed itself by and through a

body known as the "North Carolina State Bar Council," and has regulated the professional

conduct of attorneys licensed to practice law in the State of North Carolina by and through both

the North Carolina State Bar Council itself, and through a commission known as the Disciplinary

Hearing Commission.

19. In furtherance of its putative authority to regulate the professional conduct of

licensed attorneys, the State Bar regularly investigates and prosecutes claims of alleged attorney

misconduct, and, by and through its Disciplinary Hearing Commission (hereinafter sometimes

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referred to as the "DHC"), regularly holds hearings to determine whether an attorney is subject to

being disciplined for engaging in alleged professional misconduct.

20. To that purported end, on September 12, 2003, the North Carolina State Bar filed

a Complaint with its Disciplinary Hearing Commission alleging that in April of 1998, the

Plaintiff had misspent $290 in client funds, and therefore was subject to professional discipline

pursuant to N.C. Gen. Stat. § 84-28. ~ Exhibit A. It is this attorney disciplinary action, styled

The North Carolina State Bar v. Willie D. Gilbert, II, No. 03 DHC 16 (hereinafter sometimes

referred to as "Gilbert III"), and currently pending before the Disciplinary Hearing Commission

of the North Carolina State Bar, which the Plaintiff seeks to have this Court temporarily,

preliminarily, and permanently enjoin from proceeding any further on the grounds that it is being

prosecuted in bad faith and for vindictive reasons.

21. Although the disciplinary proceeding sought to be enjoined in this case (i.e.,

Gilbert III) was filed by the State Bar on September 12,2003, in order to appreciate the context

in which the case sub judice has been brought, one cannot ignore the adversarial aspects of the

parties' history with one another, which began more than 10 years ago on or about July 19, 1999.

Cf. United States v. P.H.E.. Inc., 965 F.2d 848,857 (lOth Cir. 1992)(examining "prosecutorial

conduct dating back some five years"); Shaw v. Garrison, 467 F.2d 113, 114-15 (5th Cir. 1972)

(same); Wichert v. Walter, 606 F. Supp. 1516, 1521 (D. N.J. 1985)(examining bad faith claim in

light of "the surrounding circumstances" and "the context in which the charges were brought").

22. More specifically, on or about July 19, 1999, the Plaintiff was served with a

"grievance" alleging that he had engaged in professional misconduct while representing one of

his former clients before the North Carolina Industrial Commission. This grievance, dated July

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13, 1999, was not filed by the subject former client, but was filed by and in the name of the

North Carolina State Bar.

23. Along with the July 13, 1999 grievance with which the Plaintiff was served came

a Subpoena requiring him to turn over to the State Bar all of his trust account records for the

period of January 1, 1998 to the present. Specifically, the Plaintiff was required to turn over "all

records relating to any account into which client or fiduciary funds have been deposited from

Jan. 1, 1998 to the present, including, but not limited to cancelled checks, deposited items,

deposit slips, debit memos and monthly bank statements."

24. Shortly after receiving the State Bar's July 13, 1999 grievance and Subpoena (to

wit, later that same month), the Plaintiff provided the State Bar not only with copies of all of the

subpoenaed trust account records that were in his possession, but also with a "Release" granting

the State Bar direct and unrestricted access to those of the subpoenaed trust account records that

were in the possession of the bank at which the Plaintiff had been maintaining his trust account.

In fact, the Release for the Plaintiffs trust account records was provided to the State Bar on the

very same day that the Plaintiff was served with the Subpoena for copies of the records (i.e., on

July 19, 1999).

25. Pursuant to a subsequent request by the State Bar for copies of his operating

account records, on or about October 6, 1999, the Plaintiff also provided the State Bar with: (a)

copies of his operating account records for the period of January I, 1998 to the present; and (b) a

second "Release," covering the period of January 1, 1995 until revoked, and granting the State

Bar direct and unrestricted access to those of the Plaintiffs operating account records that were

in the possession of the bank at which the Plaintiff maintained his operating account.

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Case 5:09-cv-00383-D Document 7-13 Filed 08/27109 of 45

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26. In addition to providing copies of, and voluntarily permitting the State Bar's

access to, his attorney trust and operating account records in July and October of 1999,

respectively, the Plaintiff also consented at or about the same time (by way of a Consent Order of

Preliminary Injunction) to having his entire trust account, including his own access thereto,

completely frozen. In fact, since the Consent Order freezing the Plaintiff's trust account has

never been lifted or dissolved, the reality is that, since July of 1999, there has been no activity in

the Plaintiff's trust account, there has been no change in the records that reflect the transactions

involving the Plaintiffs trust account, and the State Bar has been in possession of, and has had

direct and unrestricted access to, all of the Plaintiffs trust account records covering the period of

January 1, 1998 through at least July 19, 1999.

27. On February 15,2000, the State Bar filed a Complaint with the Disciplinary

Hearing Commission of the North Carolina State Bar alleging, in pertinent part, that in 1998 and

1999, the Plaintiff had "misappropriate[ed]" the trust account funds of not only the Industrial

Commission client mentioned in the July 1999 "grievance", but also at least three additional

clients who never before had complained about the Plaintiffs conduct and who previously had

not been mentioned by the State Bar -- Michelle Munavalli, Sanjay Munavalli (collectively "the

Munavallis"), and one or more unnamed "clients". That case was styled The North Carolina

State Bar v. Willie D. Gilbert. Attorney, No. 00 DHC 3 (hereinafter "Gilbert I"). See Exhibit B.

28. On Apri126, 2000, and without affording the Plaintiff an opportunity to be heard,

the State Bar sought and obtained from the DHC ang parte Order allowing it to amend its

original Complaint in Gilbert I. J In its Amended Complaint, the State Bar, among other things,

dropped its original allegation that the Plaintiff had misappropriated money from the Munavallis,

The State Bar's g parte motion to amend the Complaint was filed more than 6 weeks after the Plaintiff hadfiled and served his answer to the Complaint.

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and substituted therefor two entirely new and substantively different allegations -- one of which

alleged that notwithstanding the existence of an express agreement between the Plaintiff and the

Munavallis that permitted the Plaintiff to do so, the Plaintiff violated the Revised Rules of

Professional Conduct by accepting reimbursement from the Munavallis for the costs of certain

expenses. See Exhibit c.

29. Significantly, neither the original Complaint, nor the Amended Complaint in

Gilbert I alleged that the Plaintiff had taken any other steps that constituted a mishandling or

misappropriation of client funds in 1998.

30. At no time prior to the February IS, 2000 filing of the Complaint in Gilbert Idid

the Munavallis lodge a complaint or grievance with, or otherwise notify the North Carolina State

Bar or the Plaintiff that they had any lingering concerns or complaints about the Plaintiffs

conduct or quality of representation. Nor at any time prior to the filing of the Complaint in

Gilbert I did the State Bar notify or give the Plaintiff an opportunity to respond to any claim or

charge that there was a question about his conduct during his representation of the Munavallis.

31. The preceding circumstances suggest that the State Bar instigated the conflict

concerning the Munavallis in Gilbert I. and that it did so by covertly resurrecting (i.e.,

unbeknownst to the Plaintiff) an issue that, for nearly two years, was treated and regarded by the

interested parties as having been satisfactorily resolved.

32. Prior to July 17, 2000, which was the first day of the disciplinary hearing in

Gilbert I, the State Bar urged or otherwise encouraged Michelle Munavalli, who as stated had not

previously raised a complaint or filed a grievance with the State Bar about the Plaintiff s

conduct, fees or expenses, to file an application with the North Carolina State Bar Client Security

Fund ("Client Security Fund") for reimbursement ofaB the attorney's fees and expenses she had

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paid the Plaintiff. The State Bar did this despite the fact that more than 2 years earlier (i.e., on or

about May 23, 1998), the Plaintiffs and the Munavallis had negotiated a resolution of all fee and

expense issues between them.

33. The State Bar also did this with the presumed knowledge that under the Rules

Governing the Administration of the Client Security Fund, a valid claim for reimbursement

requires a showing of financial loss as a result of "dishonest conduct" on the part of an attorney,

that the issue of the Plaintiffs honesty/dishonesty vis-a-vis the Munavallis was directly before

the DHC as a result of the allegations made in the State Bar's own Amended Complaint, and

especially that no determination of fraud, dishonesty or any other misconduct on the part of the

Plaintiff had yet been made by the DHC.

34. Indeed, after four days of hearings in Gilbert I, no determination that the Plaintiff

had engaged in any fraudulent, deceitful or dishonest conduct vis-a-vis the Munavallis was ever

made by the DHC.

35. On November 1, 2000, the Disciplinary Hearing Commission entered an Order of

Discipline in Gilbert I. Though the DHC concluded that the Plaintiff had violated certain

provisions of the Revised Rules of Professional Conduct, contrary to the State Bar's demands, it

did not enter an Order of disbarment against the Plaintiff. Instead, the discipline imposed -- a

five-year suspension from the practice oflaw, with the last three years of such suspension being

stayed on certain conditions -- essentially was intended to be a two-year suspension from the

practice of law.

36. On December 4,2000, the Plaintiff filed a Notice of Appeal from the DHC's

Order of Discipline in Gilbert I. As part of the appellate process in that case, and as permitted by

N.C.G.S. § 84-28(h) and Rule 23 of the North Carolina Rules of Appellate Procedure, the

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Plaintiff sought and obtained, first from the North Carolina Court of Appeals, and later from the

North Carolina Supreme Court, two consecutive writs of supersedeas partially staying the

enforcement of the DHC's Order of Discipline.

37. Significantly, these writs of supersedeas did not grant the complete stay of the

Order of Discipline sought by the Plaintiff in Gilbert I. In particular, they did not permit the

Plaintiff to handle or otherwise deal with client or fiduciary funds in any way. Nor did they

permit the Plaintiff to "accept any new retainer or engage as attorney for another in any new case

or legal matter of any nature." Instead, these writs of supersedeas stayed only those aspects of

the Order of Discipline in Gilbert I which, by operation of Rules .0I24(a) and .0124(b) of the

Discipline and Disability Rules of the North Carolina State Bar, otherwise would have required

the Plaintiff to: (a) immediately notify his then-existing clients that he had been suspended; and

(b) either resolve, or withdraw from, the pending litigation matters of these clients within 30

days of the entry of the Order of Discipline.

38. Since the writs of supersedeas issued by the appellate courts in Gilbert I

prohibited the Plaintiff from accepting any new clients or cases, and from handling or otherwise

dealing with any client or fiduciary funds in any way, the practical effect of these writs was

simply to extend, for the benefit of those who were among the Plaintiffs clients as of November

I,2000, the time for the Plaintiff to complete the work that he had been asked to perform by

those clients. Otherwise and consequently, the Plaintiff was unable to practice law in the

customary sense, and effectively began serving the suspension imposed in Gilbert I, from and

after November 1, 2000.

39. Notwithstanding the Plaintiffs inability, even after the issuance of the writs of

supersedeas, to practice law in the customary sense from and after November I,2000, in a July

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23, 2002 letter written in direct response to the issuance of these writs, counsel for the North

Carolina State Bar advised Plaintiffs counsel that the State Bar's intentions were to deal with the

Plaintiff and his reinstatement to the practice of law in such a manner as to discourage the

Plaintiff and similarly situated attorneys from fully exercising their appellate rights "in future

cases" by seeking and obtaining, as part of the appellate process, orders staying or otherwise

affecting the immediate and total enforcement of adverse Orders of Discipline secured by the

State Bar and entered by the DHC. See Exhibit D.

40. On or about January 18,2001, and in spite of the fact that the DHC concluded in

Gilbert I that the Plaintiff had not engaged in any fraudulent, deceitful or dishonest conduct with

respect to Michelle and Sanjay Munavalli, the State Bar caused its Client Security Fund to pay

Michelle Munavalli more than $4,600.00 following her testimony in Gilbert I. This payment,

which the State Bar previously has conceded was meant to be a partial refund of the money that

the MunavaIlis had agreed to pay the Plaintiff pursuant to the negotiated resolution of the fee and

expense issue referenced in the preceding paragraphs, was made in direct contravention of the

Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar,

which require, at a minimum, that an applicant receiving a payment from the Client Security

Fund: (a) be the victim of, and have suffered financial loss as a result of, "dishonest" conduct;

and (b) first seek to collect any amounts claimed to be due directly from the subject attorney.

41. In the Plaintiffs case, Michelle Munavalli never attempted to recover any amount

of money directly from the Plaintiff.

42. Upon information and belief, the payment of more than $4,600.00 to Michelle

Munavalli represents the first time in the history of the North Carolina State Bar that the Client

Security Fund has paid money to the former client of a lawyer (presumably living) who has been

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neither disbarred, nor found by the DHC, after an evidentiary hearing, to have misappropriated

money or to have engaged in fraudulent, deceitful or dishonest conduct with respect to

reimbursed client.

43. Significantly, neither the North Carolina General Statutes, nor the Rules

Governing the Administration of the Client Security Fund of the North Carolina State Bar

provide for a right of appeal from the determinations of the Client Security Fund of the North

Carolina State Bar.

44. Even more significantly, the payment of more than $4,600.00 to Michelle

Munavalli came just a few months after counsel for the State Bar stood before the DHC and,

after resting the State Bar's case-in-chief, unequivocally represented to the chairman of the panel

in Gilbert I that the North Carolina State Bar "[did not] think there was any fraud" involved with

respect to the expenses for which the Client Security Fund nevertheless gave Michelle Munavalli

a "refund".

45. On or about April 18, 2002, the State Bar filed a civil action for conversion

against the Plaintiff in Wake County (N.C.) District Court. That action, which is captioned was

The North Carolina State Bar v. Willie D. Gilbert III [sic], 02 CVD 4961 (hereinafter "Gilbert

[]"), sought to compel the Plaintiff, purportedly under the doctrine of subrogation, to pay the

State Bar, in addition to other sums, not only the $4,600.00+ that it paid to Michelle Munavalli in

direct contravention of the Rules Governing the Administration of the Client Security Fund, but

also double damages pursuant to N.C.G.S. 84-13 (titled, "Fraudulent practice, attorney liable in

double damages"). Stated differently, the goal of the State Bar in Gilbert II was to obtain a

money judgment requiring the Plaintiff to suffer the payment of more than $9,200.00, plus

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interest, as a penalty for engaging in conduct that the State Bar (and the Munavallis) judicially

admitted in Gilbert I was neither fraudulent, deceitful, nor dishonest.

46. Moreover, under the doctrine of subrogation, the State Bar has no greater right to

recover from the Plaintiff than the Munvallis had, and it is subject to the same claims and

defenses that would apply to the Munavallis.

47. On July 16,2002, a divided panel of the North Carolina Court of Appeals

affirmed the November 1, 2000 Order of Discipline entered by the DHC in Gilbert I.

48. On August 20,2002, the Plaintiff appealed the North Carolina Court of Appeals'

decision in Gilbert I to the North Carolina Supreme Court as a matter of right.

49. During his appeal to the Supreme Court, and because of uncertainty regarding the

effect of the appellate courts' writs of supersedeas on the date of the Plaintiffs eligibility for

reinstatement to the practice of law, ~ supra 'ft 36-39, the Plaintiff, in his brief to the Supreme

Court in Gilbert I, specifically asked the Court to address this issue.

50. Notwithstanding the express declaration to Plaintiffs counsel nearly a year before

that the Plaintiffs date of eligibility for reinstatement was indeed going to be a contested issue,

and that the State Bar's intention was to deal with that issue in a manner that would discourage

the Plaintiff and anyone similarly situated from exercising their appellate right to seek and obtain

a writ of supersedeas in future disciplinary cases, counsel for the State Bar misled the Supreme

Court by asserting in the State Bar's appellate brief that it was "not clear that a genuine

controversyexist[ed] as to th[e] issue" of when the Plaintiffs two-year period of suspension

would expire.'

2 Shortly after receiving the State Bar's brief suggesting that there was no genuinecontroversy between the parties as to when the Plaintiffs two-year period of suspension wouldexpire, the Supreme Court affirmed the Court of Appeals' decision in Gilbert I without

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51. On September 10, 2003, the North Carolina Supreme Court held oral arguments

in Gilbert 1.

52. Two days after the North Carolina Supreme Court held oral arguments in Gilbert

1, the State Bar filed the Complaint in Gilbert llI.3

53. In Gilbert III, the State Bar alleges that in April of 1998 -- the same period of time

that was at issue in Gilbert I - the Plaintiff misappropriated for his own use a total of $290 in

client funds by issuing trust account check no. 1078 for $100 to his mother, and trust account

check nos. 1079 and 1081 for $100 and $90, respectively, to an office employee who also was

his fiancee. According to the State Bar, neither the Plaintiff, the Plaintiffs mother, nor his office

employee had any funds that belonged to them in the Plaintiffs trust account and, as a result,

trust account checks numbered 1078, 1079 and 1081 were allegedly paid with funds that were

misappropriated from three of the Plaintiffs other clients known by the last names of Maxwell,

Hailey and Pyrtle.

54. As an apparently alternative theory of liability in Gilbert III, the State Bar also

alleges that even if check nos. 1078, )079 and 1081 were not paid with funds that were

misappropriated from the Plaintiffs clients, then they, nevertheless, were paid with personal

funds that the Plaintiff impermissibly had commingled with client funds.

addressing this crucial issue or making any other comment. Moreover, five days after theSupreme Court's decision in Gilbert I, see infra note 3 (i.e., after all briefing and oral argumentsto the Court had concluded), counsel for the State Bar unilaterally announced in a letter toPlaintiffs counsel that, contrary to the Plaintiffs position, the State Bar intended to treat thePlaintiffs suspension as becoming "effective" as of the issuance of the Supreme Court's mandateand, by implication, to require the Plaintiff to serve an additional two-year period of time duringwhich he would be unable to engage in the practice of law. See Exhibit F.3 On October 2, 2003, the North Carolina Supreme Court affirmed the Court of Appeals'decision in Gilbert Iwithout comment.

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55. Finally, the State Bar also alleges without specificity in Gilbert III that the

Plaintiff failed to "promptly payor deliver" funds that Maxwell, Hailey and Pyrtle had directed

him to pay to certain third parties.

56. Significantly, Gilbert III is based upon and was precipitated by a "grievance" that

was originally filed against the Plaintiff on July 17, 2000. This is significant because July 17,

2000 was: (a) the first day ofthe disciplinary hearing in Gilbert I, and (b) nearly 3 Y2 years

before the State Bar decided to file the Complaint in Gilbert ill based on this very same

"grievance". It is also significant because, by implication of their own terms, both the grievance

forming the basis of Gilbert ill and the Complaint in Gilbert IIIitself arise out of. and are

allegedly based upon, information known to the State Bar prior to the first day of the hearing in

Gilbert I. In fact, the very same trust account checks that are alleged in Gilbert III to represent

purported misappropriations were provided to the State Bar on or about July 19, 1999 -- nearly 1

year before the disciplinary hearing in Gilbert Ieven began.

57. Moreover, as with all previous complaints, charges and grievances filed against

the Plaintiff, save for perhaps one, the July 17, 2000 grievance giving rise to the formal

Complaint in Gilbert illwas not filed by one of the Plaintiff's own clients, but was filed by, and

in the name of, "the North Carolina State Bar".

58 For reasons which appear to be explained by numerous statements and actions of

the State Bar in Gilbert Iand Gilbert III that reveal an attitude of bad faith and vindictiveness

towards the Plaintiff,4 the July 17,2000 written "grievance" giving rise to Gilbert ill contained

the materially false allegations that: (a) the Plaintiff "never presented Maxwell with a

disbursement statement ... ": and (b) "Maxwell received ... less than $500.00[]" from her

4 See,~, supra <JrlI39 and 50; and infra u: 63(1), 63(m), 63(n), 63(p) and 63(q),respectively.

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settlement. These allegations, which were clearly meant to imply that the Plaintiff had short-

changed his client and had attempted to cover up that fact by failing to present the client with a

disbursement statement, were false when they were made, and whoever at the State Bar was

responsible for making them either knew that they were false when they were made, or was

willfully ignorant of the fact that they were false when they were made.

59. Because the July 17,2000 grievance which preceded the filing of Gilbert III

served as a basis not only for invoking the Grievance Committee's jurisdiction, but also for the

Grievance Committee's apparent decision to authorize the filing of the action, Gilbert III was

precipitated by the propagation of intentional misrepresentations of material facts.

60. Gilbert III is but one of the most recent examples in a series of examples of sharp

and unlawful acts and practices that have been designed and intended by the State Bar to: (i)

punish the Plaintiff and to exact from him a price for having avoided the disciplinary punishment

sought by the State Bar in Gilbert I (disbarment); (ii) punish and retaliate against the Plaintiff for

having exercised his statutory and constitutional rights to defend himself zealously against the

claims of misconduct asserted in Gilbert I; (iii) punish and retaliate against the Plaintiff for

having sought appellate review of the decision of in Gilbert I; (iv) erect unnecessary and

unjustified obstacles to the Plaintiff's ability to return to the practice of law and to rebuild his

professional reputation and career, (v) punish and retaliate against the Plaintiff for having

exercised his clearly-established and lawful right to defend himself zealously against the claims

and charges of professional misconduct leveled in Gilbert III; and (vi) otherwise harass, menace

and intimidate the Plaintiff by repeatedly leveling questionable accusations of misconduct and

mounting unexpected legal attacks that the Plaintiff's own clients have not leveled, mounted or

requested. See Exhibit D, at 1.1. 37 and 38.

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61. In fact, the designation "Gilbert ill" is somewhat of a misnomer, since the filing

of the case styled The North Carolina State Bar v. Willie D. Gilbert. II, No. 03 DHC 16 (i.e.,

Gilbert ill), is actually the seventh occasion -- between July of 1999 and September of 2003 -- on

which the State Bar has either initiated, or caused to be initiated, legal proceedings accusing the

Plaintiff of wrongdoing or misconduct that the Plaintiffs own clients have not accused him of

committing."

62. In addition to the dubious acts and practices noted in Paragraph Nos. 27,28,30,

31,32, 33, 39, 40, 42, 44, 45, 46, 50, 52, 56, 57, 58 and 59, above, the series of sharp and

unlawful practices herein complained of include, but are not limited to, the following:

(a) Filing a grievance against and issuing a subpoena for the trust account

records of an attorney-defense witness who, within days, was expected to provide

corroborating testimony on behalf of the Plaintiff in Gilbert 1.6 This grievance, which

was filed the day after this attorney was designated as a defense witness in the Pre-trial

Order in Gilbert I, was also filed by, and in the name of, the North Carolina State Bar.

Shortly after receiving the grievance and subpoena from the State Bar, the attomey-

5 These occasions include the July 1999 grievance filed by, and in the name of, The North Carolina StateBar; the February 2000 Complaint in Gilbert I; the April 2000 Amended Complaint in Gilbert I; the July 2000grievance filed by, and in the name of, The North Carolina State Bar; the July 2000 application for reimbursementfrom the Client Security Fund and the January 2001 proceedings thereon; the April 2002 civil action for conversionfiled in Wake County District Court; and the September 2003 Complaint in Gilbert Ill. However, even theseoccasions fail to account for the State Bar's two appeals and questionable pursuit of a Writ of Prohibition and/orSupersedeas in Gilbert IV, ~ infraU 69-74. and its unilateral opposition to the reinstatement of the Plaintiffs lawlicense on grounds that are dubious at best. See infra l'64-67. All told, and including the four appeals that werespawned by Gilbert I and Gilbert II, since July of 1999, there have been at least 14 different instances in which theNorth Carolina State Bar has, in the absence of client complaints, served as the "plaintiff' or complaining party inlegal proceedings against the Plaintiff in this case.

As a direct and proximate result of prosecuting this case and having to mount defenses to Gilbert I, GilbertII. Gilbert Ill, the Plaintiff alleges that he has sustained monetary losses and incurred debts (in the form of the costsof defense, court costs, expenses, etc.) that are well in excess of $100,000.6 This witness' testimony would have been helpful to the defense in Gilbert I because the most serious issuein that case -- whether a misappropriation of funds had taken place - pitted the word of one of the Plaintiffs clientsagainst the Plaintiffs word, and because this witness' testimony would have tended to corroborate the Plaintiffsversion of events, including the fact that the Plaintiffs handling of the disputed sum of money was consistent withwhat the Plaintiff and the client had agreed.

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(b) Attempting to impeach the credibility of another defense witness in

defense witness became unavailable to testify;

Gilbert I by suggesting that the witness had been convicted of crimes of which the State

Bar knew or should have known the witness had not been convicted; 7

(c) Publishing and publicly distributing in a press release and in the North

Carolina State Bar Journal a notice that the North Carolina State Bar Client Security

Fund, whose express purpose is "to reimburse ... clients who have suffered financial loss

as the result of dishonest conduct of lawyers ... [,]" had awarded $4,627.43 to Michelle

Munavalli, knowing that the Plaintiff had not embezzled any money from or otherwise

practiced any fraud or deceit upon the Munavallis, and knowing that awarding the

Munavallis $4,627.43 was unwarranted and improper under the Rules Governing the

Administration of the Client Security Fund;

(d) Knowingly making the material misrepresentation of fact during oral

arguments before the North Carolina Supreme Court in Gilbert I that the Plaintiff "took

$45,000.00" from one of his clients, when the State Bar's own complaint in that case

asserted that the client had voluntarily paid that sum of money to the Plaintiff as a fee in a

worker's compensation case;

(e) Knowingly making the material misrepresentation offact during oral

arguments before the North Carolina Supreme Court in Gilbert I that the Plaintiff "held

the [Munavallis'] settlement hostage" in order to get the Munavallis to pay expenses,

when, in fact, the Plaintiff and the Munavallis had negotiated and resolved the expense

issue more than 1 month before the Munavallis' settlement funds were ever received;

7 Since the most serious issue in Gilbert I pitted one client's word against the Plaintiff's word, the issue ofwitness credibility was, again, especially important, and the improper effort to impeach the credibility of thiswitness, whose testimony tended to corroborate the Plaintiff's version of events, was especially repugnant.

- 18 -


63. Most importantly for purposes of the instant lawsuit, the filing of Gilbert III itself

has been motivated by a retaliatory and vindictive animus which makes it clear that the North

Carolina State Bar has filed and is prosecuting Gilbert III in bad faith and for purposes of

retaliation and harassment. This animus and these purposes are reflected by, among other things,

the following indisputable facts:

(a) Gilbert III was precipitated by a "grievance" that was originally filed and

served on the Plaintiff more than 3years prior to the filing of the complaint in Gilbert

III'-'

(b) Gilbert III arises out of and is purportedly based upon information that the

State Bar knew or should have known about in July of 1999, which was approximately

one (1) year prior to the hearing in Gilbert 1;

(c) The claim now being asserted in Gilbert III -- that in 1998 the Plaintiff

"misappropriate[ed]" or otherwise mishandled funds in his trust account -- is essentially

the same claim that previously was asserted, heard and considered in Gilbert I.s In fact,

in its Order of suspension following the hearing in Gilbert I, the DHC made a number of

findings which suggest that it was taking a global approach to discipline by enhancing the

Plaintiffs punishment because of the purported existence, during the relevant period of

time, of a pattern of misconduct and multiple violations of the rules of professional

conduct;

(d) Even if the claim now being asserted in Gilbert III was not previously

asserted, heard and considered in Gilbert I, since the very same trust account checks that

are alleged in Gilbert III to represent purported misappropriations were provided to the

8 See supra 'lI 27.

- 19 -


State Bar nearly 1 year before the hearing in Gilbert I, the claim now being asserted in

Gilbert III could and should have been asserted, heard and considered in Gilbert I, and is

barred by the doctrines of res judicata and/or collateral estoppel;"

(e) Gilbert III was filed after nearly three years of litigation, and just two days

after the conclusion of oral arguments before the North Carolina Supreme Court, in

Gilbert I;

(f) The State Bar purposefully waited until the Plaintiff had reached the

threshold of eligibility for reinstatement from the suspension imposed in Gilbert I before

filing the Complaint in Gilbert III;

(g) Neither the" grievance" that precipitated Gilbert III, nor the filing of

Gilbert III itself was based upon any complaint or grievance that had been made by any

client of the Plaintiff. Instead, both were generated by one or more agents of the State

Bar acting on their own accord;

(h) The State Bar failed in Gilbert III, as it did in Gilbert I, to notify the

Plaintiff of its investigation of his alleged misconduct with respect to two of his former

clients (viz., Hailey and Pyrtle, who were not mentioned in the State Bar's July 17,2000

grievance that gave rise to Gilbert lID until after it had filed a complaint against him,

thereby denying him the opportunity to respond to the charges and diminishing the

likelihood of a fair and even-handed investigation;

(i) Not one of the Plaintiffs former clients that is mentioned in Gilbert III

now contends, or has ever contended, that they (or anyone on their behalf) failed to

receive from the Plaintiff all of the money to which they were entitled. Nor is there any

9 To the extent that this claim was not encompassed by either the original. or the amended. complaint inGilbert I, nothing prevented the State Bar from seeking to file. as it did with respect to the Munavallis, yet anotheramended complaint.

- 20-


evidence that any former client of the Plaintiff that is identified in Gilbert III now

contends, or has ever contended, that the Plaintiff misspent their money, or otherwise

failed to comply with any written, verbal or other agreement, directive or understanding

regarding the care, the maintenance and/or the disbursement of their funds. In fact, it is

now nearly 10 years after the filing of the grievance giving rise to Gilbert III, and the

evidence to date reveals that of the five (5) individuals that are alleged in Gilbert III to

have either received or had funds that were allegedly misappropriated, only one has even

been interviewed by the State Bar;

(j) The grievance that precipitated the filing of Gilbert III contains the

material misrepresentations of fact that: (i) the Plaintiff "never presented [one of his

clients] with a disbursement statement ... "; and (ii) "[that same client] received ... less

than $500.00[)" from her settlement. These allegations, which were clearly meant to

imply that the Plaintiff had short-changed his client and had attempted to cover up that

fact by failing to present the client with a disbursement statement, were false when they

were made, and whoever at the State Bar was responsible for making them either knew,

or was willfully ignorant of the fact that, they were false when they were made;

(k) The authorization for the State Bar to file the complaint in Gilbert III was

secured by using material representations of fact that were false when they were made,

and that were either known, or should have been known, to be false when they were

made;

(1) The State Bar has admitted during discovery in Gilbert ITI that its intent in

Gilbert III is to seek retribution for the Plaintiffs zealous defense of the case by arguing

that the Plaintiffs use of the discovery process and unapologetic defense of the charges

- 21 -


against him demonstrate a lack of character, which should be used against the Plaintiff to

aggravate any disciplinary sanction that might be imposed, ~ Exhibit D, at,. 38;

(m) The State Bar has admitted during discovery in Gilbert III that it seeks to

have the Plaintiff disbarred in Gilbert III essentially because, according to the State Bar,

the Disciplinary Hearing Commission should have disbarred him, but, contrary to the

State Bar's request, did not disbar him in Gilbert I, ~ Exhibit D, at, 37;

(n) The State Bar has admitted during discovery in Gilbert III that, contrary to

the law of this State, it intends to rely upon conduct post-dating the alleged conduct at

issue in Gilbert III -- to wit, the conduct at issue in Gilbert I -- to establish "prior

disciplinary offenses" as a factor "in aggravation" of any misconduct that might be found

in Gilbert III, ~ Exhibit D, at,. 38; and

(0) Gilbert III was filed more than six (6) years after the Plaintiff last had

professional dealings with two of the three former clients at issue in the State Bar's

complaint, and more than five and one-half (5Y2) years after the Plaintiff last had

professional dealings with the third. The prejudice engendered by the timing of these

stale claims is manifest. Over time, memories fade and witnesses often relocate,

becoming harder and harder to find with each passing day and each successive move.

Moreover, even though the Rules of Professional Conduct did not require the Plaintiff to

retain his trust account records for more than six years after the transactions that

generated them, much of the information that the Plaintiff would need in order to

adequately defend himself and to respond to many of the State Bar's discovery requests in

Gilbert III may not be available, or would require the Plaintiff, unlike any other lawyer in

the State of North Carolina, see Revised Rule of Professional Conduct 1.15-2(b) (1997)

- 22-


("A lawyer shall retain [trust and fiduciary account] records for a period of six years

following completion of the transactions generating the record), to search for, hunt for,

recall and/or analyze and reconstruct a plethora of information generated, conversations

had and events taking place as long ago as January of 1996.

(p) During the process of discovery in Gilbert ill, the State Bar produced an

internal memorandum that revealed clearly the State Bar's intention not to press the issues

raised in Gilbert III until the Plaintiff was no longer faced with serving an active

suspension in connection with Gilbert I. In this document. dated October 27, 2000, then-

Deputy State Bar Counselor Larissa J. Erkman directs David Frederick, a State Bar

Investigator, among other things, to interview the client named in the State Bar's July 17,

2000 grievance (i.e., Maxwell, the main witness) in order to get information that the State

Bar should have had before the grievance was even filed, but advises him that, "Because

Mr. Gilbert is currently serving an active two-year suspension, there is no urgency to this

matter. II See Exhibit G.

(q) Elsewhere in this same internal document, Erkman -- at the direction of

the State Bar's chief Counsel, Carolin BakewelI -- further directs Frederick to fish around

in the Plaintiffs operating account for any other contlict or controversy that could be

generated by the State Bar. Erkman wrote:

"Look carefully at Willie Gilbert's operating account to determineif he has deposited costs and fines in his operating account alongwith fees. Carotin indicated that Willie Gilbert practiced with Mr.Hairston and that Mr. Hairston had a practice of doing so. Pleasecheck with Reggie to determine what records we have for Mr.Gilbert's operating account. II

- 23 -


64. On October 14,2004, nearly four years after the Plaintiff, pursuant to the Order of

Discipline in Gilbert I, ceased practicing law in the customary sense, the Plaintiff filed with the

North Carolina State Bar a Petition for Reinstatement of his license to practice law.

65. Although one of the conditions that the DHC had imposed as a prerequisite to the

Plaintiffs reinstatement to the practice of law was a requirement that the Plaintiff reimburse the

Client Security Fund for any amounts disbursed "as a result of [the Plaintiff's] misconduct," it is

presumed that the DHC did not intend to require the Plaintiff to reimburse the Client Security

Fund for any amount of money that it may have paid to a third party wrongfully or without

lawful authority. Indeed, N.C.G.S. § 84-28 states as much in its requirement that any condition

being placed on an attorney's right to reinstatement be reasonable.

66. On or about November 2, 2004, the North Carolina State Bar, by and through its

agent, Defendant A. Root Edmonson, filed a response to the Plaintiffs application for

reinstatement pursuant to Rule .0125(b)(6) of the Discipline and Disability Rules of the North

Carolina State Bar.

67. In its response, the State Bar objected to the reinstatement of the Plaintiffs license

to practice law on the alleged grounds, among others, that: (a) the Plaintiff had not yet served the

two-year active period of suspension originally imposed by the Order of Discipline in Gilbert I;

and (b) the Plaintiff had not reimbursed the Client Security Fund for the $4,600+ that it paid

Michelle Munavalli following her testimony in Gilbert I. But since the $4,600+ payment to

Michelle Munavalli appears to have been made by the State Bar in direct contravention of the

Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar,

and because, by its own duplicity, the State Bar may have thwarted a prime opportunity for the

North Carolina Supreme Court to have decided when the Plaintiff would be eligible for the

- 24-


reinstatement of his license to practice law, it appears to this Court that the primary purpose of

the State Bar in taking these positions was to engineer a draconian decision by the DHC that not

only would be expensive for the Plaintiff, but would also establish the most remote date possible

on which the Plaintiff would be eligible for reinstatement to the practice of law.

68. Because the DHC ultimately ruled that. as a matter of equity and fairness to the

Plaintiff, the Plaintiffs obligation to reimburse the Client Security Fund should be tied to the

outcome of Gilbert II, and because the outcome of Gilbert II had yet to be be determined. on or

about September 7,2006. the Plaintiff reimbursed the Client Security Fund for the $4,627.43 that

it paid to Michelle Munavalli following her testimony in Gilbert I. As a result of this payment

and the filing of a second Petition for Reinstatement of the Plaintiffs license to practice law, the

Plaintiffs license to practice law in the State of North Carolina was. on October 9, 2006, finally

restored.

69. On April 9, 2004, Plaintiff commenced a civil action in the Superior Court of

Wilson County, North Carolina in which he sought to temporarily and permanently enjoin the

State Bar's prosecution of Gilbert III on the grounds that it was being pursued in bad faith and for

vindictive reasons. ("Gilbert IV"). See Exhibit H. On that same date. Wilson County Superior

Court Judge Milton F. Fitch, Jr., entered an order temporarily restraining the North Carolina

State Bar from prosecuting or proceeding further with the prosecution of Gilbert III on the

grounds, inter alia, that it bore "significant indicia of having been brought in bad faith" and for

purposes of harassment. See Exhibit I.

70. Judge Fitch later entered a preliminary injunction against the continuing

prosecution of Gilbert III. ~ Exhibit J, and. on September 12, 2005, permanently enjoining the

- 25-


North Carolina State Bar prosecuting or proceeding further with the prosecution of the claims

and charges asserted in [Gilbert un. See Exhibit H.

71. As is demonstrated by even a cursory reading of Superior Court Judge Fitch's

permanent injunction order, Judge Fitch did not enter a permanent injunction against the North

Carolina State Bar frivolously, or on the basis of paranoid delusions having no basis in law or

fact. Rather, Judge Fitch took this action only after finding himself "deeply troubled," yet

convinced by a "staggering array" of evidence that Gilbert ill had been initiated in bad faith, and

was but "the latest" in what was then a six-year campaign (and what is now a lO-year campaign)

of "unremitting, increasingly disturbing, and, ultimately, unlawful acts and practices," the

purposes of which were/are to: (i) punish the Plaintiff and to exact from him a price for having

avoided the disciplinary sanction (disbarment) that the State Bar sought in Gilbert I; (ii) punish

and retaliate against the Plaintiff for having exercised his statutory and constitutional rights to

defend himself zealously against, and to seek appellate review of, the claims of misconduct

asserted in Gilbert I; (iii) punish and retaliate against the Plaintiff for having exercised his lawful

right to defend himself zealously against the claims and charges of professional misconduct

leveled in Gilbert III; (iv) "snuff out" the Plaintiffs legal career by erecting unjustified obstacles

to his ability to return to the practice of law and to rebuild his professional reputation and career,

(v) make an example out of the Plaintiff; and (vi) otherwise harass, menace and intimidate the

Plaintiff by repeatedly leveling dubious accusations of misconduct and mounting unilateral legal

attacks that the Plaintiff s own clients have not leveled, mounted or even countenanced. See

Exhibit H, at pp. 35-38 and 46-48.

- 26-


71. On October 11,2005, the North Carolina State Bar appealed Judge Fitch's rulings

to the North Carolina Court of Appeals, but on December 19, 2006, the North Carolina Court of

Appeals dismissed the appeal as being interlocutory.

72. On August 27, 2007, the North Carolina Supreme Court granted the State Bar's

petition for discretionary review of the Court of Appeals' December 19,2006, decision. In

allowing the State Bar's petition, the only two issues that accepted for discretionary review and

briefed by the parties were: (I) whether Judge Fitch had subject matter jurisdiction to enjoin an

ongoing State Bar disciplinary proceeding; and (2) whether the Court of Appeals erred by

dismissing the State Bar's appeal as being interlocutory.

73. Following oral arguments solely on the foregoing issues in December, 2007, a

divided panel of the North Carolina Supreme Court entered a ruling which concluded, inter alia,

that: (1) the trial court did have subject matter jurisdiction to issue the subject injunction; (2) the

State Bar had a substantial right to immediately pursue its interlocutory appeal; (3) the Plaintiff

could not pursue a claim for vindictive prosecution because there was no such thing as a civil

action for vindictive prosecution; and (4) the Plaintiff could not state a claim for relief for

malicious prosecution (a claim which the Plaintiff did not bring, and a ruling which the trial

court did not make) because he had not yet gone through the State Bar's unlawful prosecution,

nor had he been exonerated from the State Bar's charges. See generally Gilbert v. North Carolina

State Bar, 363 N.C. 70 (2009).

74. In reaching its decision on these issues, the latter two of which the North Carolina

Supreme Court did not even give the Plaintiff an opportunity to brief or to argue, the Supreme

Court majority did not overrule or otherwise disturb any of the trial court's findings of fact,

including, but not limited to, its findings of fact that (a) the State Bar was prosecuting Gilbert III

- 27 -


in bad faith; (b) the State Bar was prosecuting Gilbert ill in order to harass the Plaintiff; (c) State

Bar was prosecuting Gilbert ITIin retaliation for the Plaintiffs having exercised his constitutional

rights to zealously defend himself against the State Bar's previous charges; and (d) State Bar did

not have a reasonable expectation of obtaining of valid outcome in its favor in Gilbert III.

Instead, the majority ultimately concluded that the Plaintiff did not have any rights under the Due

Process clause of the United States Constitution to be free from the conduct in which the trial

court found that the State Bar had engaged.

75. In or about July of 2008, Plaintiff was retained by a 74-year old female to

represent her in connection with a slip and fall injury that she sustained while boarding a

Southwest Airlines flight from Raleigh-Durham, NC to Nashville, TN.

76. The Plaintiff commenced the action on behalf of his slip and falJ client on

November 30, 2007, with the filing of a verified Complaint. On that same date, a Summons

directing Defendant Southwest Airlines Co. to answer the Complaint within 30 days of service of

the Complaint was issued by the Durham County Clerk of Superior Court.

77. On December 3, 2007, the Summons and the Complaint in this action were

properly served upon Defendant Southwest Airlines Co.

78. Because Southwest Airlines Co. did not answer, appear, or otherwise respond to

the Plaintiffs complaint within the time allowed by Rule 12 of the North Carolina Rules of Civil

Procedure, on January 14, 2008, Plaintiff obtained on behalf of his client an entry of default

against Southwest Airlines Co., and on February 4, 2008, Plaintiff obtained a default judgment

against Southwest Airlines Co.

79. Because Plaintiffs slip and fall client's damages were not for a sum certain, on

April 28, 2008, a bench trial was held during which the Honorable Abraham Penn Jones, a

- 28-


resident superior court judge in the State of North Carolina, heard sworn testimony and received

documentary evidence in support of Plaintiffs client's request for damages.

80. Thereafter, on June 26, 2008, and having reviewed the entire case file and

considered all of the evidence presented by the Plaintiff in support of her claim for damages,

Judge Abraham Penn Jones entered a final judgment in favor of the Plaintiff for $700,000.00.

81. As a result of this $700,000 judgment, Plaintiff was entitled to receive a 1/3

contingent attorney's fee from his client.

82. At some point prior to August 28, 2008, Defendant Edmonson agreed or

otherwise conspired with counsel for Southwest Airlines (one of whom is a former President of

the North Carolina State Bar) to sabotage Plaintiffs and his client's $700,000 victory against

Southwest Airlines by concocting an absolutely false and outrageous scenario by which the

Plaintiff and his client were purportedly to have misrepresented certain facts to the trial court in

order to secure the $700,000 judgment against Southwest Airlines.

83. Defendant Edmonson's role in this Kabuki dance was to draft, sign and file an

affidavit apprising the Court that the State Bar had repeatedly leveled accusations of dishonest

conduct at the Plaintiff, that the State Bar was presently engaged in litigation involving such an

accusation (Gilbert lID, and that, by innuendo, if the Plaintiff had engaged in dishonest conduct

in the past, as the State Bar maintained he had, then the Plaintiff was likely to have done so in the

case against Southwest Airlines. See Exhibit K.

84. In spite of the fact that his affidavit had not been solicited by the trial judge, and

in spite of the fact that Southwest Airlines' accusations against the Plaintiff and his client were

completely and demonstrably false, Edmonson, by his affidavit, officiously intermeddled and

- 29-


---------------------_~ __ ~ _~-

poisoned the record in Plaintiffs slip and fall client's case, and contributed to Plaintiffs client's

loss of the $700,000 default judgment when the trial judge ultimately set it aside.

85. In or about June of 1996, Plaintiff was retained to represent a screenwriter in

connection with a lawsuit for copyright infringement against a major motion picture studio and

others arising out of the unlawful copying of the screenwriter's screenplay by the studio and

others to make a major motion picture.

86. Under the law of copyright, a victim of infringement of copyright infringement is

entitled to recover from the infringer all of the profits that the infringer receives from the

commercial exploitation of the copyrighted material.

87. In the case of the movie made from Plaintiffs client's stolen screenplay, the

profits generated from the commercial exploitation of the copyrighted material exceeded $200

million.

88. On or about May 13,2008, Plaintiff commenced an action copyright infringement

on behalf of his client in the United States District Court for the Eastern District of North

Carolina.

89. In or about February of 2009, a story about Plaintiffs counsel's copyright client's

case appeared in the Raleigh News and Observer. Approximately four weeks later, Plaintiffs

copyright case was transferred from the Eastern District of North Carolina to Central District of

California. Given this transfer, Plaintiff immediately filed a motion for admission to practice in

the Central District of California pro hac vice, and, less than 24 hours later, the Defendants in

that case filed an opposition to Plaintiffs motion on the grounds that the Defendants had

obtained from Defendant Edmonson an affidavit apprising the Court that the State Bar had

repeatedly leveled accusations of dishonest conduct at the Plaintiff, that the State Bar was

- 30-


---------------------_. - ---

presently engaged in litigation involving such an accusation (Gilbert III), and that, by innuendo,

the Plaintiff was not worthy of being granted permission to appear pro hac vice in a case in

which he had been representing his client for nearly three years. See Exhibit L.

90. On the basis of Edmonson's officious intermeddling by affidavit, the trial judge

denied Plaintiffs motion to appear pro hac vice, the contractual relationship between Plaintiff

and his screenwriter client was broken, the Plaintiff lost the right to collect a 33 1/3% contingent

from his client, and both Plaintiff and his client have been forced to commit themselves to

paying local counsel in California tens of thousands and potentially millions of dollars to

represent Plaintiffs former client.

91. As a direct result of Edmonson's and the State Bar's conduct unrelenting assaults

on the Plaintiffs ability to earn a living by practicing law unmolested, the Plaintiff has been

rendered destitute and does not anticipate being able to improve his financial condition so long

as the Gilbert III prosecution remains pending.

92. The North Carolina State Bar maintains an internet website where, in the

aftermath of the North Carolina Supreme Court's decision in Gilbert N, it is again broadcasting

to the world both the Plaintiffs name, and the fact that the North Carolina State Bar has filed and

currently has pending against him the disciplinary action herein referred to as Gilbert Ill.

Though the publication of such information might not, in the ordinary case, raise any

extraordinary or remediable privacy concerns, where, as here, the attorney disciplinary action

being advertised is being prosecuted in bad faith, for purposes of harassment, and for vindictive

reasons, the worldwide publication of information on the internet suggesting that the Plaintiff is

rightfully a defendant in a disciplinary action that is known to be illicit constitutes a pernicious

and unjustified assault on the Plaintiffs dignity and professional reputation.

- 31 -


CLAIMS FOR RELIEF

COUNT ONE-v-

The N.C. State Bar

BAD FAITH PROSECUTION OF ATTORNEY DISCIPLINARY PROCEEDINGSIN VIOLATION OF THE 1st and 14th AMENDMENTS TO

THE UNITED STATES CONSTITUTION

93. The allegations of Paragraphs 1 through 92 of this Complaint are re-alleged and

incorporated by reference.

94. The First and Fourteenth Amendments to the United States Constitution prohibit

the filing and pursuit of prosecutions that are brought in bad faith. and/or for purposes of

harassing an individual or retaliating against him for having exercised his First and Fourteenth

Amendment rights to petition the government for redress of grievances and to access and utilize

the courts for the settlement of legal disputes.

95. By prosecuting Gilbert Ill-- as the Wilson County Superior Court has found -- in

bad faith, for purposes of harassment and retaliation, and with no reasonable expectation of

obtaining a valid outcome in its favor. the North Carolina State Bar has deprived. and is

continuing to deprive, the Plaintiff of his rights under the First and Fourteenth Amendments to

the United States Constitution

96. As a direct and proximate result of the State Bar's conduct in this regard, the

Plaintiff is suffering irreparable damage, and is entitled to, inter alia, a temporary restraining

order, and a preliminary and permanent injunction, enjoining The North Carolina State Bar (and

any agency, board. committee, commission, officer, agent, servant, employee, or attorney

purporting to act on behalf or in the name of the North Carolina State Bar) from prosecuting or

proceeding further with the prosecution of the claims and charges asserted in the case of The

- 32 -


North Carolina State Bar v. Willie D. Gilbert, II, No. 03 DHC 16, which is presently pending

before the Disciplinary Hearing Commission of the North Carolina State Bar.

97. The Plaintiff is also entitled to a judgment and/or order for equitable relief against

the State Bar:

a) Declaring the filing and prosecution of Gilbert ill to have been in bad faith

and/or the result of an intent to harass or retaliate against the Plaintiff;

b) Declaring the filing and prosecution of Gilbert III to be the result of the

perpetration of a fraud upon the Grievance Committee of the North

Carolina State Bar; and

c) Declaring the filing and prosecution of Gilbert III to be unconstitutional,

and without legal justification or authority.

COUNT TWO-v-

The N.C. State Bar

BAD FAITH PROSECUTION OF ATTORNEY DISCIPLINARY PROCEEDINGSIN VIOLATION OF FEDERAL COMMON LAW



99. Under long-standing United States Supreme Court precedent, it is well-

established that there is a federal right to not be subjected to a prosecution that has been brought

in bad faith. See, ~ Dombrowski v. Pfister. 380 U.S. 479, 490 (1965).

100. Prosecutorial bad faith can take many forms, but essentially there are four types of

prosecutions that are universally recognized as being prosecutions that are being pursued "in bad

faith": (1) those that are conducted in such a way as to constitute harassment and/or an abuse of

prosecutorial discretion; (2) those that are brought in retaliation for, or to discourage, the exercise

- 33 -


of federal or constitutional rights; (3) those that are pursued without a reasonable expectation of

obtaining a valid outcome in favor of the prosecution; and (4) those that are pursued with a

combination of two or more of the aforementioned characteristics.

101. By prosecuting Gilbert III -- as the Wilson County Superior Court has found -- in

bad faith, for purposes of harassment and retaliation, and with no reasonable expectation of

obtaining a valid outcome in its favor, the North Carolina State Bar has deprived, and is

continuing to deprive, the Plaintiff of his rights under federal common law.




any agency, board, committee, commission, officer, agent, servant, employee, or attorney



North Carolina State Bar v. Willie D. Gilbert. n,No. 03 DHC 16, which is presently pending



the State Bar:

a) Declaring the filing and prosecution of Gilbert III to have been in bad faith

and/or the result of an intent to harass or retaliate against the Plaintiff;

b) Declaring the filing and prosecution of Gilbert ill to be the result of the




- 34-


and without legal justification or authority;

COUNT THREE-v-

The N.C. State Bar

VINDICTIVE PROSECUTIONIENFORCEMENT OF ATTORNEY DISCIPLINARY PROCEEDINGSIN VIOLATION OF THE 1st and 14th AMENDMENTS TO


104. The allegations of Paragraphs I through 103 of this Complaint are re-alleged and


105. The Due Process and Equal Protection Clauses of the Fourteenth Amendment to

the United States Constitution prohibit the vindictive enforcement and/or prosecution of state

laws.

106. By prosecuting Gilbert III --as the Wilson County Superior Court has found -- for

purposes of retaliating against the Plaintiff for having exercised his First and Fourteenth

Amendment rights to petition the government for redress of grievances and to access and utilize

the courts for the settlement of legal disputes., the North Carolina State Bar has engaged, and is

continuing to engage, in a vindictive prosecution of the Plaintiff




any agency, board, committee, commission, officer, agent, servant, employee, or attorney



North Carolina State Bar v. Willie D. Gilbert. II,No. 03 DHC 16, which is presently pending


- 35 -



the State Bar:

a) Declaring the filing and prosecution of Gilbert IIIto be a vindictive

prosecution;

b) Declaring the filing and prosecution of Gilbert IIIto be the result of the




and without legal justification or authority;

COUNT FOUR-v-

A. Root Edmonson, individually and in his official capacity

DEPRIVATION OF RIGHTS UNDER THE 14th AMENDMENT TOTHE UNITED STATES CONSTITUTION



110. A license to practice law is a property right which cannot be taken away or

otherwise abridged without due process of law.

Ill. By drafting, signing and filing (or causing to be filed) the affidavit that was

submitted to the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case,

Edmonson deprived the Plaintiff of his clearly established right to practice law without undue

interference.

112. As a direct and proximate result of Edmonson's conduct in this regard, the

Plaintiff has sustained actual damages in excess of $200,000.00, and is entitled to a judgment for

- 36-


compensatory damages against Edmonson, in his individual capacity, in an amount to be proven

at trial.

113. Furthermore, since Edmonson engaged in the conduct herein complained for no

legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment

for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this

action on the grounds of qualified or prosecutorial immunity.

114. Finally, since Edmonson perpetrated the conduct herein complained of while in

the employ of The North Carolina State Bar, the Plaintiff is entitled to the equitable remedy of a

preliminary and permanent injunction prohibiting both Edmonson and any other agent of The

North Carolina State Bar from engaging in the conduct herein complained of in the future.

COUNT FIVE-v-

A. Root Edmonson, in his individual capacity

CIVIL CONSPIRACY TO VIOLATE THE DUE PROCESS AND PRIVILEGES ANDIMMUNITIES CLAUSES OF THE 14th AMENDMENT TO


115. The allegations of Paragraphs I through 114of this Complaint are re-alleged and


116. A license to practice law is a property right which cannot be taken away or

otherwise abridged without due process of law.

117. In addition, the Privileges and Immunities Clause of the 14th Amendment to the

United States Constitution protects the Plaintiffs right to freely travel and to enjoy the same

rights and privileges that are enjoyed by other citizens of the United States.

118. By drafting, signing and filing (or causing to be filed), pursuant to an unlawful

agreement or conspiracy with Plaintiffs opposing counsel, the affidavit that was submitted to the

- 37 -


United States District Court for the Central District of California in Plaintiffs copyright

infringement case, Edmonson violated Plaintiffs clearly established rights under the Privileges

and Immunities Clause of the United State Constitution, and deprived the Plaintiff of his clearly

established right not to be deprived of license to practice law (pro hac vice) without due process

of law.




at trial.

120 Furthermore, since Edmonson engaged in the conduct herein complained for no




121. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and

permanent injunction prohibiting both Edmonson and any other agent of The North Carolina

State Bar from engaging in the conduct herein complained of in the future.

COUNT SIX-v-


CIVIL CONSPIRACY TO TORTIOUSLY INTERFERE WITH BUSINESS RELATIONS





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Durham County (N.C.) Superior Court in Plaintiffs slip and fall case, Edmonson tortiously


interfered with Plaintiffs business relations



at trial.








COUNT SEVEN-v-

A. Root Edmonson, in bis individual capacity

CIVIL CONSPIRACY TO TORTIOUSLY INTERFERE WITHCONTRACTUAL RELATIONS






infringement case, Edmonson tortiously interfered with Plaintiffs contractual relations

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Case 5:09-cv-00383-0 Document 7-13 Filed 08/27/09 of 45




at trial.








COUNT EIGHT-v-


CIVIL CONSPIRACY TO ENGAGE IN UNFAIR AND DECEPTIVETRADEPRACTICES

132. The aIJegations of Paragraphs I through 131 of this Complaint are re-alleged and



agreement or conspiracy with Plaintiffs opposing counsel, the affidavits that were submitted to

the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case and to the United States

District Court for the Central District of California in Plaintiffs copyright infringement case,

Edmonson engaged in unfair and deceptive acts or practice, in or affecting commerce.



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at trial.







COUNT NINE-v-


CIVIL CONSPIRACY TO ENGAGE IN DEFAMATION PER QUOD




agreement or conspiracy with Plaintiffs opposing counsel, the affidavits that were submitted to

the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case and to the United States

District Court for the Central District of California in Plaintiffs copyright infringement case,

Edmonson engaged in a defamation of the Plaintiff per quod.




at trial.

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COUNT TEN-v-


INTENTION INFLICTION OF EMOTIONAL DISTRESS



143. By drafting, signing and filing (or causing to be filed) the affidavits that were

submitted to the Durham County (N.C.) Superior Coun in Plaintiffs slip and fall case and to the


infringement case, Edmonson engaged in extreme and outrageous conduct, and intentionally

inflicted severe emotional distress upon the Plaintiff.


Plaintiff has been damaged, and is entitled to a judgment for compensatory damages against

Edmonson, in his individual capacity, in an amount to be proven at trial.



for punitive damages against Edmonson. and Edmonson is not entitled to escape liability in this


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]46. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and



COUNT ELEVEN-v-

A. Root Edmonson, in his individuaJ capacity

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

147. The allegations of Paragraphs 1 through ]46 of this Complaint are re-alleged and


148. By drafting, signing and filing (or causing to be filed) the affidavits that were

submitted to the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case and to the


infringement case, Edmonson negligently inflicted severe emotional distress upon the Plaintiff.


Plaintiff has been damaged, and is entitled to a judgment for compensatory damages against

Edmonson, in his individual capacity, in an amount to be proven at trial.








PRA YER FOR RELIEF

WHEREFORE, Plaintiff prays for relief as follows:

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1. As to Counts One, Two, Three and Four, Plaintiff have and recover appropriate

injunctive and other equitable relief, including, but not limited to, a temporary restraining order,

and a preliminary and permanent injunction, enjoining The North Carolina State Bar (and any

agency, board, committee, commission, officer, agent, servant, employee. or attorney purporting

to act on behalf or in the name of the North Carolina State Bar) from prosecuting or proceeding

further with the prosecution of the claims and charges asserted in the case of The North Carolina

State Bar v. Willie D. Gilbert, II. No. 03 DHC 16. which is presently pending before the

Disciplinary Hearing Commission of the North Carolina State Bar;

2. As to Counts Four. Five, Six, Seven, Eight. Nine. Ten and Eleven. Plaintiff has

and recover from Defendant A. Root Edmonson, in his individual capacity, an award of both

compensatory and punitive damages in an amount to be proven at trial.

3. That the State Bar be ordered to have and recover nothing in Gilbert III;

4. That the costs of Gilbert III and this action. including reasonable attorney's fees

be taxed against Edmonson and the State Bar; and

5. That this Court order such other and further reJief as may seem just and proper.

Respectfully submitted. this 27th day of August, 2009.

MICHAUX & MICHAUX. P.A.

By Is/ Eric C. MichauxEric C. MichauxCounsel for the PlaintiffPost Office Box 2152Durham. North Carolina 27702emichaux @aol.comPh.: (919) 596-8181N.C. State Bar No.: 2988

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VERIFICATION

North Carolina

Wilson County

Willie D. Gilbert, II, being first duly sworn, deposes and says that he is the Plaintiff in theforegoing action and that the allegations set forth in the foregoing Complaint are true to the bestof his knowledge and belief. except for those allegations set forth upon information and belief,and as to those allegations, he believes them to be true.

Sworn to and subscribed beforeme this ~ day of August, 2009.


Willie D. Gilbert, II v. North Carolina State Bar

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